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41 U.S.F. L. Rev. 589 (2006-2007)
Only the DOJ Knows: The Secret Law of Electronic Surveillance

handle is hein.journals/usflr41 and id is 597 raw text is: Only the DOJ Knows: The Secret Law of Electronic Surveillance By KEVIN S. BANKSTON* THIS ARTICLE EXAMINES A TROUBLING PATTERN in the appli- cation of federal law enforcement surveillance statutes-namely, those portions of the Electronic Communications Privacy Act of 1986' (the ECPA) sometimes known as the Pen Register Statute2 (PRS) and the Stored Communications Act- (SCA)-whereby federal pros- ecutors secretly and routinely obtain court authorization for surveil- lance that Congress did not intend and which may violate the Fourth Amendment. Case studies demonstrate how the United States Department of Justice (DOJ) regularly applies for and receives secret surveillance authority from magistrate judges across the country, based on often- implicit legal arguments that are dubious at best and deceptive at worst. These case studies of legally questionable yet routine surveil- lance demonstrate how the government is steadily increasing its sur- veillance authority beyond the bounds of the law, shielded by the secrecy of the ex parte surveillance application process. The govern- ment has achieved this erroneous authority through reliance on often-unspoken and legally unsound arguments that are deployed for years at a stretch without being subjected to meaningful judicial scru- tiny. Indeed, the case studies reveal that the DOJ has often actively avoided judicial scrutiny of the legal rationales behind its surveillance applications. This raises several questions: How many thousands of il- legal and unconstitutional surveillances have been authorized in this * Staff Attorney, Electronic Frontier Foundation (EFF). Thanks to Susan Freiwald and Lee Tien for their suggestions and support. 1. Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (codified as amended at 18 U.S.C.A. §§ 2510-22, 2701-12, 3117, 3121-27 (West 2000 & Supp. 2006)). 2. Electronic Communications Privacy Act of 1986, Title III, § 301 (codified as amended at 18 U.S.C.A. §§ 3121-27 (West 2000 & Supp. 2006)). This portion of the ECPA is also sometimes known as the Pen/Trap Statute. 3. Electronic Communications Privacy Act of 1986, Title II, § 201 (codified as amended at 18 U.S.C.A. §§ 2701-12 (West 2000 & Supp. 2006)).

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